Forthcoming in the Oxford Journal of Legal Studies

ALBERT VENN DICEY AND THE CONSTITUTIONAL THEORY OF EMPIRE

Dylan Lino*
In the post-1945 world, constitutionalism has transcended the nation-state, with an array of
transnational arrangements now manifesting constitutional characteristicsso says a
growing number of scholars. This paper reveals an earlier but largely forgotten discourse of
transnational constitutionalism: the constitutional theory of the British Empire in the latenineteenth and early twentieth centuries. Focusing on the work of Albert Venn Dicey, the
paper shows that, when the Empire was at the height of its power and prestige, British
constitutional scholars came to see the Empire as a constitutional order and project. For
Dicey, a committed constitutionalist and imperialist, the central dynamic of the imperial
constitutional order was balancing British constitutional principles with imperial unity. This
paper focuses in particular on parliamentary sovereignty, a constitutional principle that for
Dicey was both necessary for and dangerous to the Empires integrity. An exercise in
intellectual history, the paper rethinks Diceys work and the constitutional tradition in which
Dicey has played such an integral part, seeking to bring empire back into the picture.
Keywords: constitutional theory, Albert Venn Dicey, legal history, British Empire,
transnational constitutionalism
1. Introduction
It has become difficult to talk about constitutions without using words like transnational,
international and postnational. Over the last two decades, constitutional theorists and
international lawyers have come to argue that constitutions, constitutionalism and
constitutionalization are no longer attached exclusively to the nation-state.1 Various
transnational institutions, all post-dating the Second World War, have been conceptualized in
constitutional terms, including the United Nations,2 the World Trade Organization3 and
especially the legal structures facilitating European integration.4 Innovations like the
European Union represent, in Habermass words, a postnational constellation, one coming
in the wake of the nation-states long political supremacy and its monopoly on the
constitutional imagination.5
But how novel is the idea of constitutionalism beyond the nation-state? This paper
draws attention to an earlier but largely forgotten moment when transnational governing
*

1
2

PhD Candidate, Melbourne Law School; Visiting Researcher, Harvard Law School;
d.lino@student.unimelb.edu.au. Many people helped me in conceiving and writing this paper. My greatest
thanks are due to Samuel Moyn, whose encouragement, insight and criticism have been invaluable.
Thanks are also due to John Allison, Jane Bestor, Oran Doyle, Hedayat Heikal, Vicki Jackson, Duncan
Kennedy, Coel Kirkby, Paul MacMahon, Frank Michelman, Zoran Oklopcic, Thomas Poole, Oren Tamir,
Mark Tushnet and Mark Wu, and to the journal editors and anonymous referees.
See, eg, Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism? (OUP 2010).
See, eg, Bardo Fassbender, The United Nations Charter as the Constitution of the International
Community (Martinus Nijhoff 2009).
See, eg, Deborah Z Cass, The Constitutionalization of the World Trade Organization: Legitimacy,
Democracy, and Community in the International Trading System (OUP 2005).
See, eg, JHH Weiler, The Constitution of Europe: Do the New Clothes Have an Emperor? and Other
Essays on European Integration (CUP 1999).
Jrgen Habermas, The Postnational Constellation and the Future of Democracy in The Postnational
Constellation: Political Essays (Max Pensky tr and ed, MIT Press 2001).

arrangements were imagined in constitutional terms. That moment began in the latter decades
of the nineteenth century, and the arrangements were those governing the British Empire. It
was in this age of empirea period of intense imperial rivalry among European powers for
territory, economic influence and military dominancethat British constitutional scholars
increasingly envisioned the British Empire as a constitutional order and project.6 Although
constitutional understandings of the Empire were by no means unknown in earlier times, they
became far more commonplace and self-conscious in this era and persisted within British
constitutional theory throughout the first half of the twentieth century, declining only after the
Empires post-war dismantlement and the British turn towards the new transnational regime
governing an integrated Europe.
To explore this constitutional theory of the British Empire in the late nineteenth and
early twentieth centuries, the paper focuses on the work of one particular contributor to it:
Albert Venn Dicey (18351922). Vinerian Professor of English Law at Oxford University
from 1882 to 1909, Dicey wrote what remains the most influential work of British
constitutional theory: Introduction to the Study of the Law of the Constitution (LOTC).7 First
published in 1885, Diceys canonical tract ran through eight editions to 1915 while he was
alive and two posthumous editions, the last in 1959.8 Yet even as Dicey continues to be
studied and debated, the significant imperial dimensions of his constitutional thoughtas
manifest in LOTC, Diceys other scholarship and his (often anonymous or pseudonymous9)
journalismremain largely overlooked, even by his most historically sensitive interpreters.10
6
7

10

Eric Hobsbawm, The Age of Empire 18751914 (Pantheon Books 1987).

The first two editions (1885, 1886) were titled Lectures Introductory to the Study of the Law of the
Constitution, reflecting the manner of their original composition as lectures: AV Dicey, Lectures
Introductory to the Study of the Law of the Constitution (Macmillan and Co 1885). For an up-to-date
overview of the reception of LOTC, see JWF Allison, Editors Introduction to Volume One in AV Dicey,
The Oxford Edition of Dicey: The Law of the Constitution, vol 1 (JWF Allison ed, OUP 2013) xiixxiv.
Dicey, LOTC First Edition (n 7). Subsequent editions were issued in 1886, 1889, 1892, 1893, 1897, 1902,
1908 and 1915. The posthumous editions (1939, 1959) had lengthy introductions written by ECS Wade.
Anonymous and pseudonymous journalism was common in nineteenth-century English-language
periodicals. To substantiate Diceys authorship, I have relied on Daniel Haskell, The Nation: Volumes 1
105, New York, 18651917: Index of Titles, vol 1 (New York Public Library 1951); Wellesley Index to
Victorian Periodicals, 18241900 <http://wellesley.chadwyck.com> accessed 24 July 2015.
JWF Allison acknowledges that imperialism is commonly recognized to be characteristic of the period in
which Diceys famous book was produced without exploring it further: Allison, Editors Introduction to
Volume One (n 7) xxx. Allison has elsewhere touched on imperial elements within Diceys work without
discussing them in depth: JWF Allison, Editors Introduction to Volume Two in AV Dicey, The Oxford
Edition of Dicey: Comparative Constitutionalism, vol 2 (JWF Allison ed, OUP 2013) xli, xliv fn188.
Dicey biographer Richard Cosgrove claims that while imperial matters commanded [Diceys] allegiance,
the integrity he brooded over encompassed only the United Kingdom, not the overseas empire: Richard
A Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist (University of North Carolina Press
1982) 150. Diceys imperialism receives little or no discussion in the following studies of his thought:
Stefan Collini, Public Moralists: Political Thought and Intellectual Life in Britain, 18501930 (Clarendon
1991) 287301; Julia Stapleton, Dicey and His Legacy (1995) 16 Hist Pol Thought 234; Mark D
Walters, Dicey on Writing the Law of the Constitution (2012) 32 OJLS 21. The imperial dimensions of
Diceys work are briefly raised in W Ivor Jennings, In Praise of Dicey, 18851935 (1935) Pub Admin
123, 127; David Sugarman, The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science
(1983) 46 MLR 102, 103, 107. Exceptions to this general neglect can be found in studies of the latenineteenth and early twentieth century proposals for Imperial Federation, which Dicey stridently
opposed: see John Kendle, Federal Britain: A History (Routledge 1997) 303; Duncan Bell, The Idea of
Greater Britain: Empire and the Future of World Order, 18601900 (CUP 2007) 314 (index entry for
Dicey); Anthony Brundage and Richard A Cosgrove, The Great Tradition: Constitutional History and
National Identity in Britain and the United States, 18701960 (Stanford University Press 2007) 12729.

Although Diceys extensive academic and polemical interventions against Home Rule for
Ireland have long been researched, his often-overlapping (but less voluminous) writings on
empire have not.11
This paper is a study in intellectual history that rethinks Diceys work and the
constitutional tradition in which Dicey has played such an integral part. As British scholars
have become increasingly preoccupied with transnational constitutionalism in Europe and the
United Kingdoms place within it, they have overlooked an earlier form of transnational
constitutionalismthat of the British Empirethat claimed the attention of their forebears.12
Such forgetfulness manifests a tendency that JGA Pocock discerned and criticized four
decades ago: a growing English willingness to declare that neither empire nor
commonwealth ever meant much in their consciousness, and that they were at heart
Europeans all the time.13 The constitutional thought of Dicey, as well as many of his
contemporaries and successors, shows that empire once formed an important part of British
constitutional consciousness.
More broadly, assuming Dicey was right to see the British Empire as a constitutional
order, this paper suggests that transnational constitutionalism may not be a post-1945or
post-colonialnovelty. The scholarship on constitutionalism beyond the nation-state
conventionally assumes or explicitly narrates a transition from purely national to increasingly
transnational constitutional arrangements occurring in the wake of the Second World War,
after which a host of new arrangements for regional and global governance has emerged.14
But as historians such as Frederick Cooper and Jane Burbank have emphasised, much of the

11

12

13
14

Another exception is Peter Olivers study of constitutional theory in the settler colonies of Australia,
Canada and New Zealand, which contains an insightful but brief treatment of how Dicey applied his
understanding of parliamentary sovereignty to the settler colonies: Peter Oliver, The Constitution of
Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand (OUP
2005) 5561. A third exception can be found in analyses of Diceys account of the rule of law that bring in
colonial developments: see RW Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law
(OUP 2005) 45658; David Dyzenhaus, The Puzzle of Martial Law (2009) 59 UTLJ 1; Thomas Poole,
Reason of State: Law, Prerogative and Empire (CUP 2015) 197, 2012; Dylan Lino, AV Dicey and the
Constitutional Theory of Empire (LLM thesis, Harvard University, 2015). Finally, a collection of letters
between Dicey and AB Keith, edited by Ridgway Shinn and Richard Cosgrove, focuses mainly on
imperial constitutional questions, but aside from a brief editors introduction and occasional explanatory
notes, the work consists only of the letters themselves: Ridgway F Shinn Jr and Richard A Cosgrove (eds),
Constitutional Reflections: The Correspondence of Albert Venn Dicey and Arthur Berriedale Keith
(University Press of America 1996).
See, eg, Christopher Harvie, Ideology and Home Rule: James Bryce, AV Dicey and Ireland, 18801887
(1976) 91 Eng Hist Rev 298; Cosgrove, Albert Venn Dicey (n 10), especially 11440, 22860.
The contemporary omission of imperialism in accounts of the British Constitution is not total. See, eg,
Martin Loughlin, The British Constitution: A Very Short Introduction (OUP 2013) 716. Bringing
imperialism back into the frame of British constitutional theory is a goal of Poole (n 10). For an early
foray into the constitutional relationship between Britain and Europe, see SA de Smith, The Constitution
and the Common Market: A Tentative Appraisal (1971) 34 MLR 597. For more recent British scholarship
on transnational constitutionalism in Europe and beyond, see, eg, Neil Walker, Jo Shaw and Stephen
Tierney (eds), Europes Constitutional Mosaic (Hart 2011).
JGA Pocock, British History: A Plea for a New Subject (1975) 47 J Mod Hist 601, 602.
For an explicit narrative of this transition, albeit one sceptical of its success in achieving constitutionalism
as a normative ideal, see Dieter Grimm, The Achievement of Constitutionalism and Its Prospects in a
Changed World in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism? (OUP
2010).

pre-1945 world was ruled not by nation-states but by transnational empires.15 It was only
with the post-war break-up of European empires that the nation-state became the generalized
form of sovereignty, at the very moment when new transnational institutions were coming
into being.16 If, following Dicey and his contemporaries, empires are theorized in
constitutional terms, then 1945 represents not simply the birth moment of new constitutional
orders beyond the nation-state, but the end of an older (and very different) transnational
constitutionalism of empire.
Part 2 begins with an account of the late nineteenth-century imperial turn in British
constitutional scholarship. This turn was spurred by a wider intellectual and political embrace
of imperialism and aided by understandings that the Constitution was both an organic growth
and unwritten. Situating Dicey within this context, Part 3 of the paper analyses Diceys
commitment to imperialism. This section also reveals how Diceys interpretation of human
difference in terms of stages of civilization led him to see as futile and potentially
dangerous efforts to rule people in a manner unsuited to their civilizational development. Part
4 argues that the key dynamic in Diceys constitutional thought on the Empire was
simultaneously to sustain the core principles of British constitutionalism while maintaining
imperial unity. Dicey analysed many of the Empires constitutional dimensions, and much
could be said about the imperial connections in his writings on, for instance, the rule of law,
the power of the monarchy, Imperial Federation and Home Rule for Ireland.17 However, this
paper pays particular attention to his treatment of the related concepts of constitutional
flexibility and parliamentary sovereignty. On the one hand, Dicey saw the British
Constitutions flexibility or expansiveness as integral to the growth and success of the
Empire, for it enabled the easy incorporation of new territories, the adoption of varied
political arrangements appropriate for the Empires different peoples and rapid responses to
internal or external threats. But the principle underlying this flexibilitythe absolute
sovereignty of the Imperial Parliamentalso presented opportunities for misrule and thereby
raised the prospect of colonial disaffection and imperial disintegration. Rejecting the solution
of colonial representation in the Imperial Parliament, Dicey instead favoured an imperial
constitutional ethos of laissez faire, one imposed partly by the brute fact of colonial
remoteness and partly by emerging constitutional convention. The analysis reveals the
complex relationship between British constitutionalism and imperialism. On Diceys account,
unbridled parliamentary sovereignty was simultaneously a requirement of and menace to the
imperial constitutional orders integrity.
2. Imagining an Imperial Constitution
Prior to the 1880s, the Empire had been a subject of concernalbeit a fitful onewithin
British constitutional scholarship.18 In the Introduction to his Commentaries, Blackstone
briefly addressed the legal relationship between England and its colonies, elaborating rules

15

16
17

18

Frederick Cooper, Colonialism in Question: Theory, Knowledge, History (University of California Press
2005) ch 6; Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of
Difference (Princeton University Press 2010).
Cooper (n 15) 11.
On the rule of law and Imperial Federation, see (n 10). On the monarchy and empire, see Lino (n 10). On
Ireland, see (n 11).
Poole (n 10) examines connections between constitutional thought and empire going back to the
seventeenth century, focusing on thinkers who are often excluded from the constitutional law canon,
such as David Hume and Adam Smith.

governing the reception of the common law and Parliaments overriding authority.19
Throughout most of the nineteenth century, the predominant mode of constitutional
scholarship was history.20 Into the latter decades of the century, the major works in the
genreby Henry Hallam (1827), Thomas Macaulay (184861), Edward Freeman (1872) and
William Stubbs (187478)typically narrated an insular Whig story of English (or British)
constitutional development and progress which, though it may have helped legitimate
imperial rule, did not incorporate the overseas Empire in any detail.21 While John Stuart
Mills philosophically oriented reflections on constitutional structures and principles in
Considerations on Representative Government (1862) were deeply engaged with imperial
rule,22 other more politically minded studies of the Constitution, such as Walter Bagehots
widely read English Constitution (1867), were only sporadically concerned with the
Empire.23 To be sure, administrators and politicians in colony and metropole continued
working out in practice what can rightly be called, indeed what they themselves sometimes
called, the Empires constitutional features.24 But in high constitutional theory and

19

20

21

22

23

24

1 Bl Comm 1045. See further Craig Yirush, Settlers, Liberty, and Empire: The Roots of Early American
Political Theory, 16751775 (CUP 2011) 4448.
On the place of history within nineteenth-century constitutional scholarship, see JWF Allison, History in
the Law of the Constitution (2007) 28 J Legal Hist 263. On the importance of constitutional history to
Anglo-American historiography more generally, see Brundage and Cosgrove (n 10).
Henry Hallam, The Constitutional History of England from the Accession of Henry VII to the Death of
George II (J Murray 1827); Thomas Babington Macaulay, The History of England from the Accession of
James the Second (Longman 194861); Edward A Freeman, The Growth of the English Constitution from
the Earliest Times (Macmillan 1872); Williams Stubbs, The Constitutional History of England in Its
Origin and Development (Clarendon Press 187478). A perceptive account of Whig history is provided in
JW Burrow, A Liberal Descent: Victorian Historians and the English Past (CUP 1981). On the imperial
entanglements of Macaulay and Freeman, see respectively Catherine Hall, Macaulay & Son: Architects of
Imperial Britain (Yale University Press 2012); Duncan Bell, Alter Orbis: Freeman on Empire and Racial
Destiny in GA Bremner and Jonathan Conlin (eds), Making History: Edward Augustus Freeman and
Victorian Cultural Politics (OUP 2015). On the role of historical progress narratives legitimating empire,
see Theodore Koditschek, Liberalism, Imperialism, and the Historical Imagination: Nineteenth-Century
Visions of a Greater Britain (CUP 2011). The neglect of the Empire in these histories may have partly
been a product of the time period examined, which in no case went beyond the middle of the eighteenth
century. In this respect, compare the more extensive engagement with imperial matters in Thomas Erskine
May, The Constitutional History of England Since the Accession of George the Third 17601860, vol 2
(Crosby & Nichols 1863) 54787; Charles Yonge, The Constitutional History of England From 1760 to
1860 (Marcus Ward & Co 1882).
John Stuart Mill, Considerations on Representative Government (Parker, Son, and Bourn 1861). See, eg,
Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought
(University of Chicago Press 1999) especially 77114; Jennifer Pitts, A Turn to Empire: The Rise of
Imperial Liberalism in Britain and France (Princeton University Press 2005) 12362.
Walter Bagehot, The English Constitution (Chapman & Hall 1867) 172, 13738. See also William Edward
Hearn, The Government of England, Its Structure, and Its Development (Longmans, Green, & Co 1867),
which devoted little attention to imperial or colonial matters.
There is a considerable historical literature examining the British Empires constitutional dimensions as
manifest in law, politics and administration (as opposed to scholarship). In the BritishAmerican context,
see, eg, Daniel Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism
in the Atlantic World, 16641830 (UNC Press 2006). In British India, see, eg, Jon Wilson, The Silence of
Empire: Imperialism and India in David Craig and James Thompson (eds), Languages of Politics in
Nineteenth-Century Britain (Palgrave Macmillan 2013); Lauren Benton, From International Law to
Imperial Constitutions: The Problem of Quasi-Sovereignty, 18701900 (2008) 26 L Hist Rev 595. For
rich explorations focusing on New Zealand, see Mark Hickford, Lords of the Land: Indigenous Property
Rights and the Jurisprudence of Empire (OUP 2011); Mark Hickford, Considering the Historical-Political

scholarship throughout much of the nineteenth century and earlier, such developments only
occasionally garnered notice.
Around the 1880s, however, the Empire gained more sustained attention within
constitutional scholarship. (Dicey, no exception to this statement, will be dealt with at length
later.) The appearance in 1880 of Parliamentary Government in the British Colonies, an
exhaustive elaboration of the workings of colonial government written by Canadian Alpheus
Todd, was an important development.25 The Empire was granted a prominent place in the
work of Diceys Oxford colleague and friend Sir William Anson, whose voluminous Law and
Custom of the Constitution first appeared a year after LOTC in 1886.26 Reflecting the
growing sense of the Empires importance, Anson observed in outlining his subject that
[o]ur work is not done until we have made out the nature of the bonds which connect the
United Kingdom with the various parts of the Empire which lie scattered over the habitable
surface of the earth.27 His treatment of those bonds was elaborated in a 70-page chapter.28
Another major constitutional work to recognize the importance of the Empire was Frederic
Maitlands Constitutional History of England, a series of lectures composed and delivered in
188788 but published posthumously in 1908.29 Maitlands account of the contemporary
Constitution stressed that Parliament now ruled not only over the United Kingdom but over
the whole of that huge collection of lands which it is convenient to call the British Empire.30
With the Empire as the starting point of Maitlands contemporary story, he proceeded to
describe the stages whereby new lands have been brought into connexion with the
Constitution and the legal bonds which bind these lands together.31 Other less influential
constitutional scholars similarly integrated the colonies as central elements of their
accounts.32
The key factor driving this incorporation of the Empire into constitutional scholarship
was the late-Victorian rise of imperial sentiment within Britain. Until around the 1870s,
British politicians and intellectuals largely viewed the Empire with indifference or as a
burden, and believed that the inevitable colonial trajectory, at least in the settler colonies, was
separation.33 Views began to change, however, from the 1870s onwards, both in Britain and
the settler colonies, as support for maintaining imperial unity grew.34 A major manifestation
of this was the debate over the creation of an Imperial Federation between the United
Kingdom and settler colonies.35 This debate was part of a broader intellectual trend, the most

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26
27
28
29
30
31
32

33
34

35

Constitution and the Imperial Inheritance in Mid-Nineteenth Century New Zealand: Balance, Diversity
and Alternative Constitutions (2014) 12 NZ J Pub Intl L 145.
Alpheus Todd, Parliamentary Government in the British Colonies (Longmans, Green, & Co 1880). The
book served as a source for others, including Dicey: see, eg, Dicey, LOTC First Edition (n 7) 63.
Sir William Anson, The Law and Custom of the Constitution (Clarendon Press 18861892).
ibid, vol 1, 30.
ibid, vol 2, 20672.
FW Maitland, The Constitutional History of England (CUP 1908).
ibid 330.
ibid. For Maitlands treatment of the Empire, see 33043, 46263.
See, eg, Leonard Courtney, The Working Constitution of the United Kingdom and Its Outgrowths (JM
Dent & Co 1901); Edward Wavell Ridges, Constitutional Law of England (Stevens 1905).
See Bell, Greater Britain (n 10) 31.
ibid. Dicey himself keenly observed this change: see, eg, AV Dicey, Lectures on the Relation Between
Law and Public Opinion in England During the Nineteenth Century 44855 (Macmillan and Co 1905).
See Bell, Greater Britain (n 10); Kendle (n 10).

influential exponents of which were JR Seeley and JA Froude, towards reconceiving the
United Kingdoms history, present and future as intimately bound up with the Empire.36
From around the turn of the century, with the Second Boer War squarely in view,
Dicey himself recognized the growth in imperial sentiment and accurately (if not originally)
diagnosed its main causes. The most significant cause was industrial and military competition
among European imperial powers.37 As Dicey explained in 1905, imperial feeling had arisen
at a time when [t]he day of small States appears to have passed and [g]reat empires had
become a necessity of our time.38 Another important cause of imperial feeling was the
effective shrinking of space that had resulted from technological advancements.39 Innovations
such as the steamship and telegraph had made increased imperial integration a practical
reality and helped people imagine the Empire as a common political space. Dicey concluded
in 1902 that the effect of scientific inventions which have drawn distant countries nearer to
one another, makes it impossible for England and her colonies to stand as far apart from each
other as they did fifty years ago.40 A further factor driving British imperialism was worry
about the potentially deleterious effects of democracy, especially a slide towards socialism.41
On Diceys reading, the fall of laissez faire and utilitarianism, as well as the waning faith in
democracy, had opened up ideological space for imperial sentiment to flourish.42 Filling up
the vacuum left by those ideologies, imperialism represented a new form of the undying
belief in progress.43 All in all, the late-Victorian flourishing of imperial sentiment was,
concluded Dicey, a revolution in opinion as remarkable as any change which has taken place
during the nineteenth century.44
Although these features of the wider landscape were critical in prompting an imperial
shift in British constitutional thought, that shift was aided by two features internal to
constitutional discourse itself. The first was the Whig historical narrative of progressive
constitutional growth. While grounded in an insular nationalism, that narrative also left room
for imagining the growth of English greatness spatially as well as temporallythe expansion
of England, in Seeleys well-known phrase.45 This storythe transformation of England
into the British Empire, as Dicey put itwas one that impressed itself upon Diceys mind in
the years before he wrote LOTC.46 It also made a mark on the Whig narrative of progressive
constitutional development present in much constitutional scholarship. A good case in point
36

37

38

39
40

41
42
43
44

45

46

JR Seeley, The Expansion of England (Macmillan 1883); JA Froude, Oceana, or England and Her
Colonies (Longmans, Green, & Co 1886). For excellent discussion of Seeley and Froude, see Bell,
Greater Britain (n 10) 10813, 14349, 15078.
Bell, Greater Britain (n 10) 3540; Paul Kennedy, The Rise and Fall of the Great Powers: Economic
Change and Military Conflict from 1500 to 2000 (Random House 1987) 143274.
Dicey, Law and Public Opinion (n 34) 45354. See also An Observer [AV Dicey], The Causes of
Imperialism in England (1901) 73 Nation 203, 203.
For the view among Diceys contemporaries, see Bell, Greater Britain (n 10) 6791.
An Observer [AV Dicey], The Constitutional Aspects of Mr Chamberlains Journey (1902) 75 Nation
477, 478.
Bell, Greater Britain (n 10) 4046.
Dicey, Causes of Imperialism (n 38) 204.
ibid.
An Observer [AV Dicey], The Parliamentary Election in England: An English View (1900) 71 Nation
362, 363.
See William Edward Hartpole Lecky, A History of England in the Eighteenth Century (Longmans, Green,
& Co 187890); John Richard Green, History of the English People (Macmillan and Co 187780); Seeley
(n 36).
[AV Dicey], Leckys History of England in the Eighteenth Century (1878) 26 Nation 261, 261. See also
[AV Dicey], Greens History of the English PeopleII (1880) 31 Nation 188.

was Leonard Courtneys 1901 book The Working Constitution of the United Kingdom and Its
Outgrowths, which supplemented a Whig constitutional story with considerable analysis of
the Constitutions colonial outgrowths.47 As Dicey explained in reviewing Courtney, a
former Liberal MP and noted opponent of the Boer War, Courtneys work revealed the
extent to which the conception of England as the centre of an empire influences the
imagination of a writer who, as a statesman, would assuredly not be called an Imperialist.48
The project of imagining the Empire in constitutional terms was also facilitated by the
fact that the British Constitution was (and remains) an unwritten one.49 British
constitutional scholarsunable to point to a single, canonical document that codified the
fundamental features of governmenthad to conceptualize a constitution from the ordinary
mass of statute, common law and convention. To distinguish the constitutional from the nonconstitutional, theorists had therefore to think functionally rather than formally, focusing on
what they saw as the basic rules and institutions of government. Diceys criterion for
constitutional law in LOTC held it to consist of all rules which directly or indirectly affect
the distribution of the exercise of the sovereign power in the state.50 Elaborating, he stressed
that those rules, among other things, define the territory over which the sovereignty of the
state extends and settle who are to be deemed subjects or citizens.51 Such malleable,
functional definitions of a constitutionopen to incorporating varied and multiple governing
institutions, territories and peoplesprovided fertile ground for imagining the Empire as a
part of the Constitution. Indeed, some definitions, such as that provided by Thomas Holland,
another of Diceys Oxford colleagues, could be even more explicit. Attempting to
exhaustively define the functional boundaries of constitutional law in his influential Elements
of Jurisprudence (1880), Holland (on whose definition Dicey drew) included the relations
between the mother-country and its colonies and dependencies.52
The conceptual malleability of British constitutional space also left much room for
vagueness and differences of opinion about which, if any, territories and institutions of the
Empire should be included in accounts of the Constitution.53 James Bryce was one of the few
who claimed that the Constitution terminated at the borders of the United Kingdom. This was
based on his view that the sine qua non of incorporation into the constitutional system was
representation in the British Parliamentsomething achieved with Wales, Scotland and
Ireland but not with any of the colonies.54 At the other end of the spectrum were scholars
such as Anson, whose account of the Constitution included the Empire in all its geographical
and institutional diversity: from the white self-governing colonies, to the Crown colonies in
places like Basutoland (Lesotho), to the distinctive arrangements in British India, to the
protectorates and spheres of influence that had recently emerged in Africa and elsewhere.55

47
48
49
50
51
52

53

54
55

Courtney (n 32).
[AV Dicey], Courtneys Constitution of the United Kingdom (1901) 73 Nation 188, 189.
See, eg, Anson (n 26) vol 1, 3334.
Dicey, LOTC First (n 7) 24.
ibid.
Thomas Erskine Holland, The Elements of Jurisprudence (Clarendon Press 1880) 249; Dicey, LOTC First
(n 7) 24 fn1. See also John W Salmond, Jurisprudence or the Theory of the Law (Stevens & Haynes 1902)
201.
For a contemporaneous recognition of this vagueness, see John W Salmond, Territorial Waters (1918) 34
LQR 235.
James Bryce, Studies in History and Jurisprudence (Clarendon Press 1901) 194.
Anson (n 26) vol 2, 21972. For similarly extensive treatments, see also Sir Henry Jenkyns, British Rule
and Jurisdiction Beyond the Seas (Clarendon Press 1902); Ridges (n 32) 32291.

On Ansons interpretation, the vast swath of the Empire formed part of the constitutional
order.
Dicey was never entirely clear about the Constitutions territorial bounds. This was
partly a result of methodological preference. His approach in LOTC was analytical: to
delineate guiding principles which pervade the modern constitution of England instead of
providing a complete account of constitutional law.56 As Anson explained the difference
between his approach and Diceys, Anson had done the work of a surveyor, Dicey that of an
artist.57 Nonetheless, Dicey certainly saw the constitutional system extending in various ways
throughout the Empire. His treatment of the Empires constitutional dimensions, inside and
outside LOTC, paid most attention to the settler colonies and, to a lesser extent, India. When
writing the lengthy new Introduction to LOTCs 1915 edition, which dealt extensively with
imperial matters, Dicey contemplated discussing the legal relations between the Imperial
Government and the Crown colonies (ie all colonies without responsible government).58 As it
happened, the new Introduction explicitly confined itself to the Dominions (as the settler
colonies had become known), though it did touch on India and, more fleetingly, the Crown
colonies and even protectorates.59 Diceys reasons for keeping the dependent Empire out of
his Introduction were not conceptual but prudential: he did not know enough about it and it
added too much complexity.60
Aside from the question of territorial scope, there was another ambiguity within
constitutional thought on the Empire: was it a constitutional conceptualization of the Empire
or an imperial conceptualization of the Constitution? The distinction is probably one of
emphasis rather than substance. For the most part, the emphasis fell on the second approach.
Constitutional thinkers in Diceys era typically began with the British Constitution and then
proceeded to trace the transnational constitutional links between Britain and its colonies. That
was certainly the tenor of LOTC, focusing as it did on the English or British Constitution,
albeit teasing out its imperial dimensions.61 Towards the end of his career, Dicey came to
perceive the Constitutions imperial character as one of its key features. In the 1908 iteration
of his unpublished lectures on comparative constitutionalism, Dicey elevated to one of the
central tenets of English constitutionalism the Constitutions status as an Imperial
Constitution.62 But Dicey also came to perceive and commend the gradual, informal
emergence of a Constitution for the Empire as a whole, a process similar to the historical
development of the British Constitution itself.63

56
57
58
59

60
61
62

63

Dicey, LOTC First (n 7) v.

Anson (n 26) vol 1, v.
Dicey in Shinn and Cosgrove (n 10) 1045, 111.
AV Dicey, Introduction to the Study of the Law of the Constitution (8th ed, Macmillan and Co 1915) xxiv
xxv fn1, lxxxvlxxxvi.
Dicey in Shinn and Cosgrove (n 10) 12831, 139.
See, eg, Dicey, LOTC First (n 7) 32 (constitution of England), 35 (British constitution).
AV Dicey, The Oxford Edition of Dicey: Comparative Constitutionalism, vol 2 (JWF Allison ed, OUP
2013) 334. For the original 1897 lecture, see 1628. Unfortunately, only the prcis of this lecture survives.
John Allison, the editor of the published lectures, has confirmed this in an email.
See Dicey, Chamberlains Journey (n 40) 46; An Observer [AV Dicey], Thoughts on the Nelson
Centenary (1905) 81 Nation 377, 378; Dicey, LOTC Eighth (n 59) lxxxvlxxxvi.

3. Dicey in the Age of Empire64

A.
Diceys Imperialism
Though it is LOTC for which Dicey is best known today, he was also a public moralist who
made frequent contributions to public debate in books, periodicals and newspapers.65 A
Whig-style Liberal by political affiliation, Dicey favoured individual liberty secured through
laissez faire governmenta view that became increasingly anachronistic as the nineteenth
century wore on.66 Dicey was also fiercely committed to Ireland remaining part of the United
Kingdom. His most strident and persistent political interventions were defences of the union
between England and Ireland against the proposals for Irish Home Rule that periodically
emerged to political prominence (and ultimately prevailed) throughout his lifetime.67
Remembered even less today than Diceys role as a public moralist is his status as a
self-described sane Imperialistcommitted, like many of his contemporaries, to
maintaining the unity and strength of the British Empire.68 Other notable lawyers and
intellectuals of Diceys day well known for their scholarly engagement with imperialism,
such as John Stuart Mill, Sir Henry Sumner Maine and Diceys cousin James Fitzjames
Stephen, had all held posts in imperial administration.69 Diceys professional engagement
with imperial affairs was, by contrast, relatively modest, extending at its highest to
involvement in colonial appeals to the Judicial Committee of the Privy Council.70 And yet
imperial issues were a regular and undeniable feature of Diceys academic and political
writings, and he often approached them from the vantage point of a constitutional scholar.
That Dicey took up questions concerning the Empire, despite his limited practical experience
in the area, is a testament to the impression that imperialism made on the minds of Diceys
generation.
Diceys engagement with imperial issues ran through all facets of his writings. It was
evident in LOTC from its first edition in 1885 through to the last published during his
lifetime, the eighth edition in 1915. Especially noteworthy is the extended discussion of
constitutional relations within the Empire that Dicey included in his new 89-page
Introduction to the eighth edition.71 Dicey also frequently engaged with imperial issues in his
voluminous writings on Home Rule. This was because proposals for Home Rule often held
up the constitutional status of the white settler colonies as a model, and also because
questions of Irelands constitutional status overlapped with proposals to federalize the United

64
65
66
67
68

69

70
71

Hobsbawm (n 6).
Collini (n 10) 287301.
Jennings (n 10) 12527; Cosgrove, Albert Venn Dicey (n 10) 22.
This is a prominent theme in Cosgrove, Albert Venn Dicey (n 10).
See, eg, Dicey, Law and Public Opinion (n 34) 455 (sane Imperialist); AV Dicey, A Fools Paradise:
Being a Constitutionalists Criticism on the Home Rule Bill of 1912 (John Murray 1913) 24 (stern
Imperialist). The idea of sane imperialism appears to have emerged around the turn of the century as a
self-appellation of some Liberal Imperialists: Peter D Jacobson, Rosebery and Liberal Imperialism, 1899
1903 (1973) 13 J Brit Stud 83, 86. A policy of sane Imperialism was also advocated around the same
time by the new liberal imperial critic JA Hobson, though Diceys version has more in common with the
Liberal Imperialists than with Hobson: see JA Hobson, Imperialism: A Study (J Nisbet 1902) 249, 25960,
293.
On Mill, see (n 20). On Maine, see Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of
Liberal Imperialism (Princeton University Press 2010); Mahmood Mamdani, Define and Rule: Native as
Political Identity (HUP 2012). On Stephen, see Mantena (n 69) at 3944.
Dicey in Shinn and Cosgrove, (n 10) 12.
Dicey, LOTC Eighth (n 59) xviicv.

10

Kingdom with the settler colonies.72 Diceys other main intellectual engagement with the
Empire and imperialism came through his extensive political commentary and book reviews,
much of which was published anonymously or pseudonymously in the periodical the Nation,
to which he regularly contributed for more than three decades.73 In these writings, especially
from the turn of the century, as well as his 1905 scholarly work Lectures on the Relation
Between Law and Public Opinion in England During the Nineteenth Century, Dicey
displayed an interest in the historical, social, political and legal dimensions of imperialism.74
Diceys commitment to imperial unity was based mainly on the benefits he saw that
imperialism conferred upon Britain and the Empire as a whole. One justification was selfpreservationist: the emergence of serious challengers to Britains power in the closing
decades of the nineteenth century necessitated that Britain maintain and increase its power to
protect the Empires independence. British imperialism was justified, as Dicey said in 1905,
because the great free States of the world must, in the presence of vast military empires,
remain strong if they are to remain free.75 The need for self-protection was made more
urgent by Diceys sense that the Empire conferred upon British subjects the uniquely
valuable benefits of English liberty, peace and order. As Dicey put it in Law and Public
Opinion, [t]he maintenance of the British Empire makes it possible, at a cost which is
relatively small, compared with the whole number of British subjects, to secure peace, good
order, and personal freedom throughout a large part of the world.76
Alongside these instrumental justifications for the Empire were more nationalistic
arguments. Maintaining Britains imperial greatness represented, in Diceys view, a dutiful
continuation of its historical trajectory and fulfilment of its destiny. This notion was
especially manifest in Diceys repudiation of Irish Home Rule: it presaged the diminution of
the Empire and thus a deliberate and complete surrender of the objects at which English
statesmanship has, under one form or another, aimed for centuries.77 Moreover, though
Dicey liked to style himself as a sane or stern imperialist, he was not immune from
appreciating the patriotic spirit of British imperialism.78 As he explained in Law and Public
Opinion, [i]mperialism is to all who share it a form of passionate feeling, a political
religion, a form of patriotism which has a high absolute worth of its own, and is both
excited and justified by the lessons of history, which taught of English greatness.79 And as
the twentieth century wore on, with renewed threats to the Empire from Home Rule and
German aggression, Dicey participated in the fervour, insisting that I yield to no man in my
passion for the greatness, the strength, the glory, and the moral unity of the British Empire.80
All of these justifications for imperialismself-preservation, securing the blessings of
English liberty, order and peace throughout the world, and nationalistic sentimentcame
72
73
74
75

76
77
78
79
80

See, eg, Kendle (n 10) 4546, 5878; Bell, Greater Britain (n 10) 13537.
On Diceys authorship, see (n 9).
Dicey, Law and Public Opinion (n 34) 44855.
Dicey, Nelson Centenary (n 63) 378. This argument only became more convincing to Dicey with the
Great War: Dicey, LOTC Eighth (n 59) xxxv. For an early statement, see AV Dicey, Democracy in
England (1880) 30 Nation 414, 415. This may have partly explained Diceys comparative interest in
Prussias militaristic constitutionalism: JWF Allison, The Spirits of the Constitution in Nicholas
Bamforth and Peter Leyland (eds), Accountability in the Contemporary Constitution (OUP 2013) 4546. I
am indebted to John Allison for suggesting this point.
Dicey, Law and Public Opinion (n 34) 454.
AV Dicey, Home Rule from an English Point of View (1882) 42 Contemp Rev 66, 68.
See (n 68).
Dicey, Law and Public Opinion (n 34) 45455.
Dicey, A Fools Paradise (n 68) 24; Dicey, LOTC Eighth (n 59) lxxxv.

11

together in the extraordinary closing passages of LOTCs 1915 Introduction. Normally

adopting at least the faade of objectivity in his academic works, an octogenarian Dicey, with
the war weighing heavily on his mind, dropped any pretence of disinterest:
The whole of a kingdom, or rather of an Empire, united for once in spirit, has entered
with enthusiasm upon an arduous conflict with a nation possessed of the largest and
the most highly trained army which the modern world can produce. England and
the whole British Empire with her have taken up the sword and thereby have risked
the loss of wealth, of prosperity, and even of political existence. And England, with
the fervent consent of the people of every land subject to the rule of our King, has
thus exchanged the prosperity of peace for the dangers and labours of war, not for the
sake of acquiring new territory or of gaining additional military glory, for of these
things she has enough and more than enough already, but for the sake of enforcing the
plainest rules of international justice and the plainest dictates of common humanity.
This is a matter of good omen for the happy development of popular government and
for the progress, slow though it be, of mankind along the path of true fortitude and of
real righteousness.81
With these impassioned words, Dicey revealed his keen sense of the Empire virtuously
uniting to protect its integrity, power and ideals.
B.
Civilization and the Sociology of Imperial Rule
A major way in which Dicey, in common with many nineteenth-century European thinkers,
made sense of human difference and the world order generally was through the concept of
civilization.82 This way of thinking imagined that all societies progressed (if they did at all)
along a set historical path, with the attainment of civilization being the most advanced stage
of development.83 Of the civilized societieseffectively Christian Europe or places settled by
EuropeansDicey saw England and its settlements as the most advanced of all, especially
when it came to law. The spirit of legalism, he wrote in 1898, is the main point on which
the Anglo-Saxon race has reached a stage of civilization to which other nations have hardly
attained.84
The greatest difference was between civilized and uncivilized societies, the latter
basically being everywhere that was not Europe. The foremost examples of uncivilized
peoples for Dicey were found in the East, which included India and the Middle East. These
societies were far behind Europe in their processes of historical progress.85 In reflecting on
the propriety of British imperialism in Egypt after the 1882 British intervention, Dicey
confidently pronounced that European notions of fairness and humanity are far in advance of
81
82

83

84
85

Dicey, LOTC Eighth (n 59) civcv.

On the prevalence of the civilization frame in nineteenth-century European thought, see Duncan Bell,
Empire and Imperialism in Gareth Stedman Jones and Gregory Claeys (eds), The Cambridge History of
Nineteenth-Century Political Thought (CUP 2011) 86772.
For a relatively detailed and extended treatment by Dicey of the components of civilization, see Dicey,
Comparative Constitutionalism (n 62) 19697.
AV Dicey, England and America (1898) 82 Atl Mo 441, 444.
Japans late nineteenth-century rise as an imperial power presented a difficult case, for it had fallen into
the line of European progress, and has progressed more rapidly and perhaps advanced further in the arts of
civilization than many European countries. An Observer [AV Dicey], Possible Effects on England of
Japans Triumph (1905) 81 Nation 315, 315.

12

the moral conceptions prevalent in the East. Civilization is, after all, not a mere name.86 For
Dicey, Ireland was also low in the stages of civilizational advancement, including in its
peoples preference for Catholicism.87
Dicey believed that a societys law was fundamentally bound up with its civilizational
progress. In this understanding he was plainly influenced by the hugely prominent work of
Maine, whose 1861 classic Ancient Law had offered a historical account of the intertwined
development of law and society through more or less universal stages of progress.88 Though
Dicey has most often been understood as a practitioner of the Austinian school of analytical
jurisprudence, he was undoubtedly an admirer and reader, though not an uncritical disciple,
of Maine.89 As he noted in an 1886 review of Maines most recent work, [s]ince Maines
Ancient Law appeared, every thinker or historian of average intelligence has become
conscious of the fact that a nations law is the record of a nations genius.90
It was an idea whose mark could be clearly discerned in Diceys own work, including
his understanding of the British Constitution as the exceptional product of English
civilizational progress. Thus, in LOTC, Dicey critiqued the view of the British Constitution
which held that every step towards civilization has been a step backwards towards the simple
wisdom of our uncultured ancestors.91 It was, rather, a story of constant historical progress,
so that modern English constitutionalism could no more be understood by our respectable
Saxon ancestors than by a Cherokee Indian: both were savages.92 Such a view led him to
express in 1899 a condescending skepticism towards [t]he extraordinary, not to say
excessive, imitativeness of the Japanese [which] has enabled them to create, as it were at one
stroke, a copy or a caricature of modern constitutionalism.93 It was, he said, in the highest
degree doubtful how far English institutions can with success be transplanted to countries of
which the development has been utterly different from the exceptional history of England.94
Law was deeply intertwined with society and its degree of civilizational progress.
This civilizational understanding of society and law, widespread at the time, had
grounded a culturalist turn in British imperial ideology and policy.95 Here, too, Maine was a
pivotal figure, both as an intellectual and as an administrator for British India.96 Shifting
away from the civilizing mission often espoused as a liberal justification for imperial rule,
culturalist imperialism pointed to the futility of governing peoples according to ideas, values
86
87

88

89

90
91
92

93
94
95
96

AV Dicey, English Popular Opinion About Egypt (1882) 35 Nation 418, 419.
See, eg, [AV Dicey], England and Ireland 35 Nation 267 (1882); AV Dicey, Imperial Rule in IndiaI
The Spectator (London, 26 August 1899) 14.
Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to
Modern Ideas (J Murray 1861). See further Raymond Cocks, Sir Henry Maine: A Study in Victorian
Jurisprudence (CUP 1988); Mantena (n 69); Mamdani (n 69).
See [AV Dicey], Maines Early History of Institutions (1875) 20 Nation 225; [AV Dicey], The
Influence of India on English Opinion (1876) 22 Nation 82; [AV Dicey], Maines Early Law and
CustomI (1883) 37 Nation 165; [AV Dicey], Maines Early Law and CustomII 37 Nation 187; [AV
Dicey], Maines Popular GovernmentI (1886) 42 Nation 263; [AV Dicey], Maines Popular
GovernmentII (1886) 42 Nation 281; Dicey, Law and Public Opinion (n 34) 41112, 45562.
Dicey, Maines Popular GovernmentI (n 89) 264.
Dicey, LOTC First (n 7) 17.
ibid 1718. Diceys claim in the same passage that [c]ivilization may rise above, but barbarism sinks
below the level of legal fictions seems to be a straightforward though unreferenced allusion to Maines
work on legal fictions: Maine (n 88) 2143.
AV Dicey, Will the Form of Parliamentary Government be Permanent? (1899) 13 Harv L Rev 67, 69.
ibid 71.
The term culturalist is from Mantena (n 69) 7.
ibid. See also Mamdani (n 69).

13

and institutions unsuited to their level of civilization. It was a lesson drawn in part from midcentury indigenous rebellions, especially the 1857 Indian Mutiny, whose proximate cause
was British insensitivity to the religious customs of Hindu and Muslim sepoys.97 The upshot
for imperial policy, many intellectuals and officials came to believe, was clear: rule subject
peoples on the basis of their own beliefs and customs or risk colonial disobedience and
unrest.
Diceys approach to imperial rule was plainly impacted by the culturalist turn, as he
frequently proclaimed the inappositeness of European modes of government for the Empires
uncivilized peoples. Drawing on Maines work in 1890, Dicey remarked that nations, which
have not reached a certain stage of development, are unfit for democratic institutions.98 For
Dicey, the most obvious case within the Empire was India, which he believed had to be ruled
despotically, at least for the time being, for the people of India are at this moment incapable
of erecting a government of their own.99 Indian civilization was based on the rule of a
benevolent despot, not a parliamentary democracy, and it ought to be governed by the British
accordingly.100 In particular, Dicey believed that the proper approach to ruling India was
through expert administration by British officials with deep knowledge of Indian society.101
By contrast, Dicey took as given that the white settler colonies, by virtue of their replication
of English civilization, were entitled to a wide degree of self-government.
If civilizational attainment militated against democracy for the Empires uncivilized
peoples, it also told against the imposition on them of other British norms and values,
however enlightened they might be. As Dicey explained in 1882, even the best of European
statesmen and administrators injure rather than benefit Eastern races by forcing upon them
the doubtful blessings of a foreign form of civilization.102 It was a view he maintained to the
end of his life, as evidenced in the 1915 LOTC Introduction, which blended Austinian legal
positivism and Maine-style culturalism:
A law utterly opposed to the wishes and feelings entertained by the inhabitants of a
country, a rule which every one dislikes and no one will obey, is a nullity, or in truth
no law at all; and, even in cases where, owing to the power of the monarch who
enacts a law opposed to the wishes of his subjects, such a law can to a certain extent
be enforced, the evils of the enforcement may far overbalance the good effects of
legislation in itself wise. This thought fully justifies an English Government in
tolerating throughout India institutions, such as caste, supported by Indian opinion
though condemned by the public opinion and probably by the wise opinion of
England. The same line of thought explained, palliated, and may even have justified
the hesitation of English statesmen to prohibit suttee.103
The concluding sentence of the quotation indicates that there were limits to Diceys tolerance
for what he saw as barbarous customs. But the predominant approach Dicey took to imperial
government, and to government in all societies, was to advocate a close fit between the mode
of rule and stage of civilization.
97
98
99
100
101
102
103

Mantena (n 69) 1.
AV Dicey, Ought the Referendum to be Introduced into England? (1890) 57 Contemp Rev 489, 503.
Dicey, Imperial Rule in IndiaI (n 87) 12.
ibid 14.
See, eg, AV Dicey, Mr Bryce on the Relation Between Whites and Blacks (1902) 75 Nation 26, 28.
Dicey, Egypt (n 86) 419.
Dicey, LOTC Eighth (n 59) lx.

14

4. Reconciling British Constitutionalism with Imperial Unity: Diceys Constitutional

Theory of Empire
The fundamental dynamic within Diceys constitutional thought on the Empire was to
reconcile two ends that he held dear: British constitutionalism and imperial unity. The main
threat to imperial unity was colonial discontent, the avoidance of which was complicated by
the differing stages of civilization among the Empires diverse peoples. Diceys writings
articulated a complex interplay between the tenets of British constitutionalism and the goal of
imperial unity: British constitutional structures and principles could both help and hinder
imperial unity. That was the case when it came to the related concepts of constitutional
flexibility and parliamentary sovereignty. On the one hand, Dicey saw the British
Constitutions flexibility as vital to the establishment and maintenance of the Empire,
enabling easy territorial expansion and differential rule over the Empires various peoples.
But the constitutional principle underpinning such flexibility, the absolute sovereignty of the
Imperial Parliament, also presented real opportunities for misrule and so was a risk to
imperial unity. That risk, Dicey argued, was mitigated in several ways, howevermost
notably, by constitutional conventions of imperial non-interference.
A.
The Virtues of Constitutional Flexibility
One of the defining features of the British Constitution wasand arguably remainswhat
Diceys lifelong friend James Bryce influentially termed its flexibility.104 It was an idea that
Dicey in LOTC borrowed: A flexible constitution is one under which every law of every
description can legally be changed with the same ease and in the same manner by one and the
same body.105 The entirety of the British Constitution, said Dicey, can be expanded,
curtailed, amended or abolished, with equal ease, making it the most flexible polity in
existence.106 The amending body was, of course, the Parliament, and constitutional
flexibility was an incident of parliamentary sovereignty. Agreeing with an analysis of
Tocquevilles, Dicey characterized the Parliament as being simultaneously a legislative and
a constituent assembly: in the former role it made ordinary laws, while in the latter role it
made laws which shift the basis of the constitution.107
Another word Dicey used to characterize the Constitutions flexibility, one richer in
signification and resonating with imperial themes, was expansiveness.108 The idea of
constitutional expansiveness tapped into Whig narratives about constitutional growth in an
ever-more progressive direction away from monarchical power and towards the sovereignty
of Parliament. But when Dicey was writing, these theories had increasingly come to be
applied territorially so as to also incorporate a story about the imperial expansion of
England.109 The growth of parliamentary sovereignty had involved encroachment not only
into the domain of monarchical power but also into new territories. As Dicey often put it

104
105

106
107
108
109

Bryce (n 54) 145254.

Dicey, LOTC First (n 7) 114. When LOTC was first published, Bryces formulation had been presented
only in an unpublished lecture, which Dicey referred to. In later editions, after Bryces theory had been
published, Dicey cited to the published work: AV Dicey, Introduction to the Study of the Law of the
Constitution (6th ed, Macmillan and Co 1902) 81 fn1.
Dicey, LOTC First (n 7) 114.
ibid 81.
ibid 114, 115.
Seeley (n 36).

15

when describing the reach of parliamentary sovereignty, Parliament is the absolute

sovereign of the British Empire.110
Constitutional flexibility or expansiveness was thus bound up with imperial rule, as
Dicey brought out in an 1899 article published in the Harvard Law Review.111 Attributing the
contemporary widespread faith in parliamentary government to the success of the English
example, he noted that
step by step, as the power of England has increased, so the constitution has proved
itself capable of expansion. The constitution has been flexible enough to admit of the
incorporation of Wales with England, the union of England and Scotland, and the
union of Great Britain with Ireland. A system, moreover, framed originally for the
government of part of a small island, has by a course of almost unconscious
adjustment developed so as to meet the wants of a large empire, and the body which
was originally the Parliament merely of England, has come to control in different
manners and in different degrees colonies and dependencies whereof some, such as
Victoria or the Canadian Dominion, have attained to virtual independence, and others,
such as the whole Indian Empire, are in truth governed by officials who in the last
resort take their orders from a Parliamentary committee.112
These remarks, which formed part of a lecture originally developed and delivered during a
trip taken by Dicey to North America in late 1898, were influenced by the contemporaneous
Spanish-American War and the USs emergence as a colonial power in Cuba, Puerto Rico
and the Philippines.113
Drawing upon the narrative of constitutional growth, Dicey here implicitly expounded
two ways in which constitutional flexibility suited the needs of imperialism. The first was in
enabling territorial expansion from part of a small island and across the globe. In fact, the
amenability of constitutional flexibility for territorial expansion was a point that Bryce had
stressed in his original account of flexible constitutions, and it was a point not lost on
Dicey.114 In the second place, constitutional flexibility made easy the deployment of different
forms of rule suited for the different peoples of the Empire: virtual independence for the
white settler colonies and despotic government by administrators for the uncivilized peoples
of India. Whereas for Bryce the fact that the Empire was governed differently to the United
Kingdom meant that the Empire was not part of the British Constitution, for Dicey such

110
111
112
113

114

Dicey, LOTC First (n 7) 355 (emphasis added).

Dicey, Parliamentary Government (n 93).
ibid 6768.
Dicey made an oblique critical reference to this in the article, pondering whether the incapacity and want
of foresight displayed in colonial affairs by George the Third and his people [in losing the American
colonies] will be underrated in the US. It was an open question, he said, whether the folly and
incompetence of Presidents may not in the long run prove as disastrous as the ignorance and arrogance of
Kings: ibid 68. A version of the lecture was delivered at the University of Toronto, where Dicey was
visiting his friend Goldwin Smith, the well-known critic of the British Empire. Due to Diceys numerous
speaking engagements in Cambridge and New York during the same trip, it may have also been delivered
in the US. See AV Dicey, Memorials of Albert Venn Dicey, Being Chiefly Letters and Diaries (Robert S
Rait ed, Macmillan and Co 1925) 166. For Smiths views on empire, see Bell, Greater Britain (n 10) 179
206. On Diceys visit to Harvard, see Richard A Cosgrove, AV Dicey at the Harvard Law School, 1898:
A Study in the Anglo-American Legal Community (1978) 26 Harv Library Bull 325 (1978).
Bryce (n 54) 19396. The lecture was originally delivered in 1884: at 177 fn1.

16

differential governance was the perfect exemplification of Britains flexible constitutional

order.115
By contrast, the constitutional rigidity typically necessitated by federalism was in
Diceys view ill-suited to the demands of imperial rule.116 Dicey was one of the staunchest
critics of the proposals for federalizing Britains relationship with Ireland or with the settler
colonies in a globe-spanning Imperial Federation.117 For Dicey, federalismpartly because it
depended on a rigid constitutionmeant both weak and conservative government.118 The
constituent power in a federal state, the collective people, was a despot hard to rouse, unlike
the ever-wakeful legislator of the English Parliament acting as constituent assembly. 119 In
his 1886 critique of Home Rule, Dicey held that the one great advantage of our constitution
over that of the United States was the strength of the Parliament, whose unlimited power
could be at once put in force by the ordinary means of law and thereby adapt to crises of
danger with an energy of action generally supposed to be peculiar to despotism.120
in point of pliability, power of development, freedom of action, English
constitutionalism far excels the Federalism of the United States. Nor is it less obvious
that the very qualities in which the English constitution excels that of the United
States are all but necessary to the maintenance by England of the power, not to say the
existence, of the British Empire.121
In another article published in the same year, Dicey maintained that [t]he rigidity of the
Constitution means the destruction of that kind of pliancy which has hitherto been the
strength of the English State.122
Here, then, was an instance in which the British Constitution and the demands of
empire were in perfect alignment. Under the flexible Constitution, Parliaments omnipotence
gave it the strength and freedom to adapt the Constitution to the diverse circumstances of the
Empire and the exigencies of imperial rule. But with flexibility also came the prospect of
unchecked imperial power, colonial disaffection and risks to the Empires stability. How to
reconcile the central tenet of the Constitutionthe unlimited sovereignty of Parliament
with imperial unity?
B.

The Perils of Imperial Parliamentary Sovereignty

(i) Parliamentary despotism in the Empire

For Dicey, parliamentary sovereigntyor parliamentary despotism, as he sometimes put it
was the one fundamental dogma of English constitutional law, and it projected out from
Westminster, pervading the Empire in its sprawling entirety.123 Diceys now canonical
definition of parliamentary sovereignty had two interrelated elements: first, that Parliament
has the right to make or unmake any law whatever; and second, that no person or body is
115
116
117
118
119
120
121
122
123

ibid 194.
On the necessity of a rigid constitution for federalism, see Dicey, LOTC First (n 7) 13437.
See, eg, Dicey, LOTC Eighth (n 59) lxiiixci.
Dicey, LOTC First (n 7) 15759.
ibid 136.
AV Dicey, Englands Case Against Home Rule (John Murray 1886) 169.
ibid. See also Dicey, Home Rule (n 77) 76.
AV Dicey, Can the English Constitution Be Americanized? (1886) 42 Nation 73, 74.
Dicey, LOTC First (n 7) 133.

17

recognised by the law of England as having a right to override or set aside the legislation of
Parliament.124 As Dicey made clear throughout LOTC, Parliaments unbridled lawmaking
powerunconstrained by any rigid written constitutionapplied to the Empire as a whole,
and when making laws in this capacity it was known as the Imperial Parliament. The
Parliament was the absolute sovereign of the British Empire, whose enactments were
binding on every Court throughout the British dominions.125 To this dogma he held firm in
LOTCs 1915 edition, even though the self-governing settler colonies had grown ever more
independent in practice over that period.126
In LOTC, Dicey illustrated the extent of parliamentary sovereignty by way of a
lengthy discussion of the governing arrangements in British India and the self-governing
colonies, using the Australian colony of Victoria as an example.127 These examples of nonsovereign legislatures, though partly comparative instances of what parliamentary
sovereignty was not, also usefully revealed (imperial) parliamentary sovereignty in action. As
Dicey made clear at the end of the discussion, the reason the colonies were not sovereign was
because the sovereign Parliament of Great Britain, which legislates for the whole British
Empire, is visible in the background.128
Both the Calcutta-based Imperial Legislative Council of India and the settler colonial
legislatures bore three marks of subordination to the Imperial Parliament.129 This was
despite the fact that the Legislative Council could pass laws as important as any Acts passed
by the British Parliament130 and the settler colonies were even in 1885 most nearly
independent states and by 1915 granted as much of independence as is compatible with
each Dominion remaining part of the Empire.131 First, both were bound by overriding laws
passed and only alterable by the Imperial Parliament.132 Second, the local constitutions in
British India and the settler colonies owed their existence to authorizing Imperial statutes that
were alterable, even revocable, at the whim of the Imperial Parliament.133 No lawyer
questions, Dicey said, that [the Imperial] Parliament could legally abolish any colonial
constitution, or that Parliament can at any moment legislate for the colonies and repeal or
override any colonial law whatever.134 Third, where colonial legislation conflicted with
Imperial legislation, it could be declared void or unconstitutional in the courts.135
124
125
126

127

128
129
130

131

132
133
134
135

ibid 36.
ibid 355.
Dicey, LOTC Eighth (n 59) xxvxxvi (the Imperial Parliament still claims the possession of absolute
sovereignty throughout every part of the British Empire; and this claim would be admitted as sound
legal doctrine by any court throughout the Empire which purported to act under the authority of the
King.).
From the seventh edition, Dicey changed his example of a self-governing colony from Victoria to New
Zealand, because Australian federation in 1901 had complicated Victorias constitutional position: see AV
Dicey, Introduction to the Study of the Law of the Constitution (7th ed, Macmillan and Co 1909) 109;
Dicey in Shinn and Cosgrove (n 10) 2526.
Dicey, LOTC First (n 7) 109.
ibid 85.
ibid 91. On the Imperial Legislative Council, see Robin J Moore, Imperial India, 18581914 in Andrew
Porter (ed), Oxford History of the British Empire: The Nineteenth Century, vol 3 (OUP 1999) 426.
Dicey, LOTC First (n 7) 109; Dicey, LOTC Eighth (n 59) xxxii. See also, eg, Dicey, LOTC Sixth (n 105)
483 (noting that the newly federated Australian Commonwealth enjoyed as complete power of selfgovernment as is compatible with the position of a colony that desires to form part of the British Empire).
Dicey, LOTC First (n 7) 92, 99.
ibid 9192, 1001.
ibid 104.
ibid 9294, 96.

18

Added to these marks of legislative subordination was the Crowns frequently

exercised power to veto colonial legislation, which it deployed for the sake of imperial
interests.136 Though the veto was exercised in practice by the Colonial Governor or an
English Cabinet Minister, Diceydue perhaps to his Whig sensibilities and a desire to make
the veto fit his theory of absolute parliamentary sovereigntysomewhat misleadingly
represented it as at bottom an exercise of the authority of the Imperial Parliament, to which
members of the executive were after all accountable.137 British rule in India and responsible
government in the settler colonies were thus manifestly non-sovereign because of their
subjection to the all-encompassing imperial embrace of Westminsters parliamentary
sovereignty.
(ii) Imperial misrule and colonial discontent
Maintaining the absolute sovereignty of the Imperial Parliament over the colonies could be
advantageous, Dicey believed, in enabling the passage of wise imperial legislation that was in
the interests of individual colonies or the Empire as a whole. As he observed in 1915, the
Imperial Parliaments capacity to outlaw unjust practices throughout the Empire, such as
slavery or judicial torture, was a good thing, at least for those who share the moral
convictions prevalent in the most civilised states.138 Aside from passing such Empire-wide
legislation, the Imperial Parliament could also beneficially legislate for specific colonies,
including to alter or repeal their constitutions. This prospect, Dicey knew, was not purely
theoretical, as proven by the necessary abolition of Jamaicas ancient constitution and its
loss of representative government following Governor Edward Eyres brutal suppression of
the Morant Bay rebellion.139 When the draft Australian Constitution, written by popular
colonial conventions and endorsed in referendums, was under consideration at Westminster
in 1900, Dicey publicly proposed an amendment so as to retain Australian judicial appeals to
the Privy Council.140 An alteration of this kind, which was at any rate favoured by the British
Government, was ultimately adopted.141 For Dicey, this was an intervention in the name of
imperial unity, of retaining one of the bonds which unite together the whole British
Empire.142
But this unrestrained power of imperial interference left as much room for centralized
maladministration as for wisdom, and could in either case stimulate colonial discontent and
thereby destabilize the Empire. As Dicey warned following the 1900 khaki election, the
result of which sounded a ringing endorsement of the Boer War and imperial unity,
136
137

138
139

140
141

142

ibid 1056.
See, eg, ibid 105 (framing the Crowns veto as the right of the Imperial Parliament to limit colonial
legislative independence).
Dicey, LOTC Eighth (n 59) xxvii.
Dicey, Englands Case (n 120) 133. See also AV Dicey, Ireland and Victoria (1886) 49 Contemp Rev
169, 173 (discussing abolition of representative government in Jamaica necessitated by the Morant Bay
rebellion); Dicey in Shinn and Cosgrove (n 10) 54 (discussing in 1911 the abolition of Jamaicas
constitution). On the rebellion more generally, see Bernard Semmel, Jamaican Blood and Victorian
Conscience: The Governor Eyre Controversy (Houghton Mifflin 1963); Kostal (n 10).
AV Dicey, To the Editor of The Times The Times (London, 7 May 1900) 8.
See David B Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 18331986
(Manchester University Press 1987) 5487.
Dicey, To the Editor (n 140) 8. See also Dicey, LOTC Sixth (n 105) 484 (discussing the retention of
Privy Council appeals under the Australian Constitution); Dicey, LOTC Seventh (n 127) 116
(characterizing the Privy Council appeal as a link strengthening the connection between the colonies and
England).

19

[r]elations sometimes get on the better for seeing very little of one another, and to meddle
actively in a mans affairs is by no means always the way either to gain or to retain his
affection.143 Indeed, Dicey once characterized representative government in the metropole as
thoroughly vicious for those peoples in the colonies who were ruled but not represented.144
This was because English parliamentary governmentwhich was, in any event, poor at
lawmaking and administrationsubjected colonial rule to domestic partisan feuds and
interests.145
Whereas the risk of parliamentary despotism was in Britain itself restrained by the
representative nature of the Parliament, the colonies were of course not represented in that
institutionnor, thought Dicey, could they be without doing excessive violence to
representative government at home. In England, the difference between the will of the
sovereign and the will of the nation was terminated by the foundation of a system of real
representative government.146 However, as Dicey claimed in his 1900 lectures on
comparative constitutionalism, representative government had to be territorially limited in
order to function effectively. In the first place, a parliament had to be both reasonably
representative and yet also a small enough forum for proper deliberation, with the result that
the population which can be adequately represented by an elected legislature is not by any
means unlimited but was confined within certain territorial boundaries.147 Moreover,
echoing Burke and Mill, Dicey claimed that successful representative government depended
upon there being a commonality of community and interest among those represented, and this
sentiment could only with great difficulty develop among the geographically disparate parts
of the Empire.148 Remarked upon by Dicey in other writings was the added problem of the
Empires civilizational diversity, which fatally undercut attempts to establish common
democratic institutions for the Empire.149 With colonial representation at Westminster, then,
[t]he Imperial Parliament would be rendered less effective than it is as a Parliament of the
United Kingdom and it would not become a body which gave adequate representation to the
colonies no less than to England.150 Colonial representation in the Imperial Parliament could
be no solution to the danger posed to imperial unity by parliamentary sovereignty.
Imperial taxation of the dependencies was Diceys paradigmatic example of
Westminster folly and overreach. The attempt by George III to tax the American colonies he
once described as insane.151 Though Dicey was very sympathetic to the need for the
colonies to contribute to the upkeep of the Empire, especially in the field of defence, the
American examplewhich had forced a peaceful population to take up arms and drove loyal

143
144

145

146
147
148

149
150
151

Dicey, Parliamentary Election (n 44) 363.

Dicey, England and Ireland (n 87) 268. See also, eg, AV Dicey, Imperial Rule in IndiaII The
Spectator (London, 2 September 1899) 13 (A representative body is a poor Sovereign for races whom it
does not represent.).
Dicey, England and Ireland (n 87) 268. On representative government as a poor lawmaker, see, eg, [AV
Dicey], Modern English Law (1876) 23 Nation 273, 274; An Observer [AV Dicey], Democratic
Assumptions: IIProgress and Popular Government (1891) 52 Nation 46, 47; Dicey, Parliamentary
Government (n 93) 78; Dicey, LOTC Eighth (n 59) xciii. See also Stapleton (n 10) 23839.
Dicey, LOTC First (n 7) 77.
Dicey, Comparative Constitutionalism (n 62) 224.
ibid 22425. On Burke and Mill, see Duncan Bell, John Stuart Mill on Colonies (2010) 38 Pol Theory
14, 5357.
Dicey, LOTC Eighth (n 59) lxxxii.
Dicey, Comparative Constitutionalism (n 62) 225.
Dicey, England and Ireland (n 87) 268.

20

subjects into rebellion152loomed large in his (and many of his contemporaries) historical
imagination and demonstrated that taxation imposed by the metropole was a fundamentally
mistaken strategy.153
And yet there was no legal barrier to it being pursued again. In LOTC, Dicey took up
the example of colonial taxation to illustrate the absolute and potentially despotic nature of
the Imperial Parliaments sovereignty.154 Ostensibly restrained by legislation enacted after the
American War of Independence that purported to prevent the levying of taxes on the
colonies, the Imperial Parliament, with its power to unmake any law whatever, was
completely free to repeal or override such legislation.155 The political prospects for such a
recurrence of imperial folly Dicey discounted in LOTC.156 But it could happen, and indeed it
almost did in 1894 when Parliament put forward legislation that effectively if inadvertently
taxed colonial propertya measure Dicey was moved to publicly draw attention to and
condemn.157 The legislation, which was subsequently modified, possibly as a result of
Diceys intervention, was the same as that which lost us the American colonies and would
no more be tolerated throughout the Empire a century after that calamity.158
According to Dicey, the twin dangers of misgovernment and imperial destabilization
also arose from the differences in civilization between the English and some of the peoples
they ruled. Presenting a very vivid illustration of this problem for Dicey was the case of
Ireland. Writing in 1882, he observed that England and Ireland had from the beginning of
their ill-starred connection been countries standing at a different level, or a different stage, of
civilization.159 Though well meaning, the English attempt to replace Irelands customary
land tenure system with Englands more regular system led to injustice, litigation, misery,
and discontent.160 Similarly inappropriate was the attempt to impose Anglican Protestantism
on Irish Catholics, who had not reached the stage of development which was absolutely
essential for even the understanding of Protestant doctrine.161 The heart of the problem was
the civilizational gap between rulers and ruled.162
152
153

154

155
156
157

158

159
160
161
162

Dicey, Leckys History (n 46) 261.

See, eg, AV Dicey, Are We Going to Tax Colonial Property? The Times (London, 22 June 1894) 13
(denouncing legislation that would tax colonial property while noting the need for the colonies to
contribute to imperial expenditure voluntarily); AV Dicey, To Unionists and Imperialists (1903) 84
Contemp Rev 305, 313 (noting that it was now or would soon be time for the colonies to be asked to
contribute a share to the funds which go to the maintenance of peace throughout the whole Empire). On
the American War of Independence in arguments over imperial unity more generally, see Bell, Greater
Britain (n 10) 25154.
Another remarkable example of the exertion of Parliamentary authority offered by Dicey, one related to
the early formation of the Empire, was Parliaments passage of the Acts of Union with Scotland and
Ireland: Dicey, LOTC First (n 7) 40. On the English unions with Scotland and Ireland as early
manifestations of the British Empire, see David Armitage, The Ideological Origins of the British Empire
(CUP 2000).
Dicey, LOTC First (n 7) 6263.
ibid.
AV Dicey, Are We Going to Tax Colonial Property? The Times (London, 18 June 1894) 8; Dicey,
Colonial Property (22 June 1894) (n 153) 13.
Dicey, Colonial Property (22 June 1894) (n 153) 13. On this legislation and its modification after
Diceys intervention, see Sir Alfred W Soward and WE Willan, The Taxation of Capital (Waterlow and
Sons 1919) 15560.
Dicey, England and Ireland (n 87) 267.
ibid 268.
ibid.
ibid.

21

It was a problem that Dicey knew could also manifest elsewhere throughout the
Empire, as in attempts to extend English governmental norms to India and to an Englishoccupied Egypt.163 As Dicey earlier explained in a review of lectures by Maine on India,
while the utilitarian principle might indeed be the correct basis of government, the
application of this principle is difficult when the sovereign and his subjects form
diametrically different estimates of the nature of happiness.164 The project of governing
people who think it their interest rather to starve than to eat food which might involve a
loss of caste left much room for error and the fomenting of resistance.165 It was just such a
British insensitivity to the religious customs of the sepoys that sparked the 1857 Indian
Mutiny, an event which among Diceys contemporaries, including Maine, stood out as the
most important lesson on the dangers of ruling uncivilized peoples without regard for their
beliefs and customs.166
(iii) Informal and practical limits on parliamentary sovereignty
One waya very blunt wayin which the theoretically unbounded sovereignty of the
Imperial Parliament was limited in practice was, on Diceys account, the very risk of colonial
disobedience and rebellion. This was an external limit that applied to the power of any true
sovereign, whether sultan, emperor or parliament.167 The Imperial Parliament could tax the
Empire as a matter of law, but such legislation would be in fact beyond the stretch of
Parliamentary power due to the widespread resistance it would provoke.168 Dicey placed
great stock in this restraint on parliamentary sovereignty in LOTC. He minimized the fact that
remaining inside this limit demanded prudent statesmanship, which, as he well knew, was not
always forthcoming from the Imperial Parliament. Moreover, the threat of disobedience or
rebellion was also not an especially fine-grained restriction on sovereign power: the point at
which subjects will offer serious or insuperable resistance to the commands of a ruler whom
they generally obey, is never fixed with precision.169 As historical experience in America
and India had shown, it could mean taking the Empire toor beyondbreaking point before
having any effect.
Dicey also conceptualized the Crowns power to veto colonial legislation as
conducive to imperial unity. This veto was in fact a relic of the royal prerogative, a form
practically obsolete in Britain but revived to regulate colonial affairs.170 The royal veto in
the colonies departed significantly from accepted British constitutional practice in the name
of imperial unity. In 1915, Dicey observed that the veto had greatly facilitated the
development of the present happy relation between England and her self-governing colonies,
enabling the creation of that combination of Imperial unity with something coming near to
colonial independence which may ultimately turn out to be the salvation of the British
Empire.171 He was never, however, clear on the reasons for this. Given that the vetos
163
164
165
166

167
168
169
170
171

ibid 267. See also, eg, Dicey, Egypt (n 86) 419.

Dicey, Influence of India (n 89) 83.
ibid.
Mantena (n 69) 1. Dicey himself saw the Indian Mutiny as a critical event in modern European history:
[AV Dicey], Thirty Years of European HistoryI (1890) 51 Nation 327, 327.
Dicey, LOTC First (n 7) 7072.
ibid 72.
ibid 76.
Dicey, LOTC Eighth (n 59) 110 fn1.
ibid xxiv. See also 110 fn1 (noting that the existence of such a veto, which ought to be, and is, sparingly
used, helps to hold together the federation known as the British Empire).

22

exercise, whether by the imperially controlled local Governor or the home government, was
necessarily a form of imperial interference, it seems that it could very well stimulate colonial
disaffection. But it may have been that the veto, in averting conflicts between colonial and
imperial legislation, allowed for a less visible confrontation between metropole and colony,
and negotiation for appropriate amendments.172
While Dicey had argued that geographical limits restricted the potential to extend
representation in the Imperial Parliament to the colonies, those limits also, Dicey came to
recognize, practically restricted the Parliaments capacity to enforce its sovereign will
throughout the Empire, and so compelled it to act with a relatively light touch. Reflecting in
1915 on the continuities in the Constitution since the first edition of LOTC was written, Dicey
observed that the Parliament had well before 1884 accepted Burkes once-ignored insistence
on the folly of the attempt made by the Parliament of England to exert as much absolute
power in Massachusetts as in Middlesex.173 Technology, it was true, had brought the Empire
much closer together, but there remained nonetheless, Dicey said, a real limit to the exercise
of sovereignty imposed not by the laws of man but by the nature of things.174 The
Parliament had long recognized in practice what it still denied in theory: that it was vain for
a parliamentary or any other sovereign to try to exert equal power throughout the whole of an
immense Empire.175 It was partly for this reason that Westminster had for many years not
levied taxes on the colonies for the benefit of the Empire as a whole.176 In the face of an
apparently omnipotent and potentially overzealous Parliament, imperial unity was aided,
somewhat paradoxically, by the very fact of the Empires vastness. Parliamentary
sovereignty, the animating principle of British constitutionalism, could do nothing else but
give way to the brute reality of colonial remoteness.
The restraint imposed by geography on imperial interference in the colonies fostered
and aligned with a more general constitutional ethicat least towards the self-governing
coloniesof laissez faire, and this was an ethic conducive to sustaining the Empires
stability. Dicey noted in the first edition of LOTC that, while the Imperial Parliaments power
may have been theoretically unlimited, its general policy was one of non-intervention in local
colonial government.177 And that policy, Dicey reflected 30 years later, had not only further
solidified but had been accompanied by even more concessions to the self-governing
colonies autonomy.178 Initially a result of British indifference towards maintaining its
Empire, the laissez faire policywhich Dicey connected with wider Victorian governmental
tendencieshad survived into the age of imperialism and weathered the eclipse of smallgovernment thinking more generally.179 The system of leaving the self-governing colonies
alone first appeased discontent, Dicey reasoned, and next allowed the growth of friendliness

172

173
174
175
176
177
178
179

Cf Dicey, LOTC First (n 7) 108 (observing that the veto prevent[s] the occurrence of conflicts between
colonial and imperial laws). See also AB Keith, Responsible Government in the Dominions (Stevens and
Sons 1909) 182 (noting that the Imperial Government could withhold royal assent from problematic
colonial legislation and then entreat the colonial parliament to make necessary amendments before
allowing the legislation to come into force).
Dicey, LOTC Eighth (n 59) xxvi.
ibid.
ibid.
ibid.
Dicey, LOTC First (n 7) 108.
Dicey, LOTC Eighth (n 59) xxivxxxii.
ibid xxxiixxxvii. See further Dicey, Parliamentary Election (n 44) 363; Dicey, Causes of Imperialism
(n 38) 203; Dicey, Nelson Centenary (n 63) 378; Dicey, Law and Public Opinion (n 34) 409, 44855.

23

which has made it possible for the English inhabitants, and even in some cases the foreign
inhabitants, of the Dominions to recognise the benefits which the Empire confers.180
This laissez faire attitude at Westminster approached the status of an unwritten
constitutional convention. Constitutional conventions, or rules of constitutional morality,
were according to Dicey (who coined the term) those legally unenforceable customs that
regulate and restrain the formal powers granted to governmental actors.181 Possessing just this
character were the rules that Dicey laid down as governing the relations between the Imperial
Parliament and the self-governing colonies (or Dominions).182 As at 1915, the key rule was
the Imperial Parliaments acceptance of the Dominions moral right to as much
independence, at any rate in regard to matters occurring within the territory of such
Dominion, as can from the nature of things be conceded to any country which still forms part
of the British Empire.183
In this non-interventionist ethos, one of the cardinal unwritten constitutional
principles, which according to Dicey applied not only in the Dominions but throughout the
Empire, was a prohibition on imperial taxation of the colonies for British or imperial
purposes.184 In LOTC, he claimed that this prohibition constituted an internal limit on the
character of members of the Imperial Parliament, a limit they would not transgress having
the history of the last century before [their] eyes.185 Elsewhere, he elaborated that the
legislative ban on colonial taxation enacted after the American Revolution establishes not a
rule of law, but a precept of constitutional morality. It does not theoretically limit, but it
practically impedes and interferes with the legislative sovereignty of Parliament.186 It was
adherence to this constitutional principle which more perhaps than any other ensures the
success of our Colonial system and generated loyalty throughout the Empire.187
Aside from the Empire-wide constitutional convention against imperial taxation,
Dicey did not have a good answer for how the risk of imperial misrule in the dependent
Empire, as against the settler colonies, was or could be constitutionally reigned in. There,
believed Dicey, the risk to imperial unity was not so much intervention itself as intervention
based on ideas at variance with those of the colonial subjects being governed. Uncivilized
peoples, especially in India, needed to be ruled by despotism, but the despotism of expert
administrators rather than the Imperial Parliament. In a 1902 article, Dicey claimed that
British administrative success in India was attributable to an adherence to such a policy: the
credit fairly due to English democracy is that, while popular opinion has vaguely desired that
India should be governed with justice, popular wisdom or diffidence or indifference has
confided the administration of British India to experts.188 But there was no constitutional
180
181
182

183
184
185

186
187
188

Dicey, LOTC Eighth (n 59) xxxvi.

Dicey, LOTC First (n 7) 25, 34198.
Diceys seeming reluctance to explicitly characterize these practices as formal constitutional conventions
may have been because that would have contradicted his already shaky claim that a breach of a
constitutional convention was liable to bring the offender into conflict with the law: Dicey, LOTC First
(n 7) 371. From this claim he had partly recanted in the third edition, but only in a single footnote and
without modifying his substantive analysis: AV Dicey, Introduction to the Study of the Law of the
Constitution (3rd ed, Macmillan and Co 1889) 26 fn2.
Dicey, LOTC Eighth (n 59) xxx.
On the principles application throughout the Empire, see ibid xxvi fn2.
Dicey, LOTC First (n 7) 74. See also 62 (predicting that the legislative prohibition on colonial taxation
will never be repealed and the spirit never be violated due to its peculiar sanctity).
Dicey, Englands Case (n 120) 246.
ibid 275.
Dicey, Whites and Blacks (n 101) 28.

24

convention mandating adherence to expert rule in India or other uncivilized parts of the
Empire. Indeed, as AB Keith informed Dicey when he was writing his 1915 LOTC
Introduction, intervention by the Imperial Parliament in the non-self-governing colonies,
unlike that in the white self-governing territories, had actually increased in the preceding
three decades.189 The problem of abused parliamentary sovereignty stirring discontent and
disunity in the dependent Empire lacked the constitutional solutions devised for the settler
colonies.
5. Conclusion
The imperial constitutional order imagined by Dicey and his contemporaries continued to be
documented and theorized by their successors, holding an important place within British
constitutional scholarship into the 1960s.190 Understandably, as former colonies and
dependencies gained independence and the British Empirerenamed the Commonwealth of
Nations in 1948 and simply the Commonwealth in 1971came to resemble less an empire
than an intergovernmental organization, the attention of British constitutional scholars turned
elsewhere.191 One of the major focal points, especially since the British accession to the
European Community in 1973, has been the United Kingdoms place within the governing
arrangements for an integrated Europe.
But as British constitutional theory and indeed constitutional scholarship more
generally have quite justifiably come to focus on contemporary transnational legal
developments within Europe and beyond, the extensive earlier constitutional thinking about
another transnational legal orderthe British Empirehas been largely forgotten. Theories
of transnational constitutionalism conventionally locate the shift to constitutionalism beyond
the nation-state within an array of post-war institutions. However, the work of Dicey and his
contemporaries suggests that there was an earlier form of transnational constitutionalism
manifest in the empires that ruled so much of the world before 1945. As imperial
constitutional orders fractured in an extraordinary way after World War Two, a world of
unequal nation-states finally became the norm, at the very moment when other sorts of
supranational institutions and efforts to shape norms of international development and
universal human rights compromised the sovereignty that was finally being generalized.192
This paper has reconstructed part of that earlier constitutional theory of empire, at
least for one of its most influential exponents. Dicey came to understand the British Empire,
189
190

191

192

Keith in Shinn and Cosgrove (n 10) 130.

AB Keiths writings in this sphere were especially extensive: see, eg, Keith, Responsible Government
(n 172); AB Keith, Imperial Unity and the Dominions (Clarendon Press 1916); AB Keith, The
Constitution, Administration and Laws of the Empire (W Collins Sons & Co 1924). Other major works by
leading British constitutional lawyers include RTE Latham, The Law and the Commonwealth in WK
Hancock, Survey of British Commonwealth Affairs, vol 1 (OUP 1937); W Ivor Jennings and CM Young,
Constitutional Laws of the British Empire (Clarendon Press 1938); WI Jennings, The British
Commonwealth of Nations (Hutchinsons University Library 1948); KC Wheare, The Statute of
Westminster and Dominion Status (Clarendon Press 1938); KC Wheare, The Constitutional Structure of
the Commonwealth (Clarendon Press 1960); O Hood Phillips, Chalmers and Hood Phillips Constitutional
Laws of Great Britain, The British Empire and Commonwealth (Sweet & Maxwell 1946); Geoffrey
Marshall, Parliamentary Sovereignty and the Commonwealth (Clarendon Press 1957); SA de Smith, The
New Commonwealth and Its Constitutions (Stevens 1964).
On the nomenclature of the EmpireCommonwealth, see W David McIntyre, The Britannic Vision:
Historians and the Making of the British Commonwealth of Nations, 190748 (Palgrave Macmillan 2009)
8285.
Cooper (n 15) 231.

25

at whose centre he lived, as a constitutional order and project, as did many of his
contemporaries. In this constitutional space, the fundamental dynamic was to reconcile
British constitutionalism with imperial unity. When it came to keeping the Empire together,
one of the central features of Diceys Constitution, parliamentary sovereignty, proved to be a
double-edged sword. While parliamentary sovereignty afforded the constitutional flexibility
necessary for successful imperial rule, such flexibility was equally compatible with imperial
misrulea danger only kept at bay by practical and informal limits on Westminsters power.

26